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Fed Judge 2002 – Questions why law Prof not licensed in MA provided legal services from MA office

Fed Judge 2002 – Questions why law Prof not licensed in MA provided legal services from MA office

“the matter should be of some moment to the Board of Bar Overseers”

After my post on September 24, Elizabeth Warren’s law license problem, one of the main defenses of Warren has been that she was not really practicing law “in Massachusetts” because she only worked on out of state cases.  It turned out that Warren had worked on a case in Massachusetts, but even so, Warren’s defenders are undeterred.

As I discussed in detail in later posts, the defense that Warren was not practicing “in Massachusetts” even though she was physically “in Massachusetts” made no logical or legal sense.

Well it turns out that in 2002 one of the most respected Judges in the Massachusetts federal court, then Chief Judge William G. Young, came to a similar conclusion in an analogous situation involving choice of law, and even made a Bar referral he was so concerned.  The case is Daynard v.  Ness, Motley, Loadholt, Richardson, 188 F. Supp. 2d 115 (D. Mass. 2002).  You may remember Judge Young from my post, Judge William Young sentencing the shoe bomber.

The case involved Northeastern University law professor Richard A. Daynard, who had an expertise in tobacco-related issues, and who provided legal consulting to the Ness Motley law firm, based in South Carolina.  Daynard sued to enforce an oral fee sharing agreement with regard to services rendered in numerous courts outside Massachusetts, for a share of Ness Motley’s $2 billion fee (yes, that’s “billion”) from the tobacco cases and settlements.

The issue before Judge Young was whether the law of Massachusetts, or the law of some other state, should apply to the services rendered.  In his analysis Judge Young noted that on a contract action, where the services took place would guide which state’s law would apply.

Judge Young reached the same conclusion as to Daynard that I reach as to Warren:  Legal services are rendered in the place the attorney performed the work.

In the Daynard case, some of Daynard’s work was utilized in Massachusetts cases, although those cases were not at issue in the fee sharing lawsuit.  In Warren’s case, her services were also utilized in at least one Massachusetts case.

Here is the key passage (emphasis mine):

Here, there is no genuine dispute about the fact that Daynard provided the vast bulk of his services to Ness Motley in Massachusetts. It is not clear that the contract required the services be performed in any particular location. The fact of the matter, however, is that the bulk of the services were provided in Massachusetts. No party has indicated that there was ever any consideration or discussion of Daynard permanently relocating to another state in order to render services. Whatever else can be said, all the parties knew Daynard was working in Massachusetts.

To be sure, Daynard’s work product — briefs, memoranda and the like — was, according to Daynard, used in litigation in a number of states. Id. ¶ 2. Daynard’s work product, however, was also utilized in litigation in Massachusetts. Id. [3] [footnote printed below]  Thus, even if litigation in other states benefitted from Daynard’s work product, the litigation in Massachusetts did as well. There is no indication in the record that Daynard performed substantially more work for litigation in other states than he did for Massachusetts litigation. The fact that Daynard’s work product was used in other states, therefore, does not provide a reason, on this record, to disturb the conclusion that Daynard performed the lion’s share of his obligation under the contract in Massachusetts. Absent a contrary indication in another section of the Restatement, therefore, Massachusetts law will govern the interpretation and enforceability of the alleged contract. [4][footnote 4 discussed below]

Footnote [3]:  Daynard does not seek to recover any portion of the defendants’ fees attributable to the Massachusetts settlement, Compl. at 16 n. 1, as he apparently was compensated by another firm for his work relating to the Massachusetts settlement. This fact, however, does not alter the reality that Ness Motley participated in the Massachusetts litigation and that the expertise and work product Daynard provided was used just as much in Massachusetts as it was in other states. That Daynard is foregoing enforcement of part of his contract is immaterial to ascertaining the scope of the contract.

The issue in the Daynard case was not the unlicensed practice of law, but rather, whether Massachusetts law applied to the contract dispute. Nonetheless, Judge Young had the same reaction to Daynard’s lack of a Massachusetts law license as I had to Warren.

Judge Young, without deciding the issue because Ness Motley was not defending on the ground that Daynard was unlicensed in Massachusetts, nonetheless raised the issue in a footnote and indicated he was notifiying the Massachusetts Board of Bar Overseers (emphasis mine):

[4]  Daynard is providing his consulting services in Massachusetts, and is claiming a share of a legal fee. The Court notes, however, that Daynard is not licensed to practice law in Massachusetts. While the Court expresses no opinion on the significance, if any, of this fact, and the parties have not addressed it, the Court will forward a certified copy of this opinion to the Massachusetts Board of Bar Overseers so that it may consider whether Daynard’s consulting services constitute the unauthorized practice of law in Massachusetts. Compare, e.g., Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 10 (1998) (refusing to permit a New York law firm to collect legal fees for legal services performed in California where no attorney was admitted to the California bar), and Peterson v. Anderson, 155 Ariz. 108, 745 P.2d 166, 169-71 (1987) (refusing to enforce a fee-splitting agreement between an Arizona lawyer and an Illinois lawyer for legal services rendered in Arizona because the Illinois lawyer was not admitted to the Arizona bar, and hence could not practice law in Arizona), with Dietrich Corp. v. King Res. Co., 596 F.2d 422, 425-27 (10th Cir.1979) (permitting law professor in Colorado who was not a member of the Colorado bar to share fees with Colorado law firm, because the services he provided to the Colorado firm did not constitute the “practice of law”), and Freeman v. Mayer, 95 F.3d 569, 574-76 (7th Cir.1996) (enforcing imperfect fee-splitting agreement between Illinois and Indiana attorneys); see also Restatement (Third) of Law Governing Lawyers § 3 cmt. e, reporter’s note (1998) (criticizing Birbrower). Given the number of prestigious law schools in Massachusetts, the extensive and varied consulting arrangements entered into by individual faculty members at these schools, and the traditional interest of the Massachusetts Supreme Judicial Court in regulating the practice of law in this Commonwealth, the matter should be of some moment to the Board of Bar Overseers.

I have been unable to confirm whether Judge Young sent a certified copy of his opinion to the Mass BBO, but he said he would so I assume he followed up.

There is no indication that the BBO followed up on it.  Daynard’s name does not appear in the list of disciplinary cases.  It may be that it was privately was resolved, or that the subject received the prosecutorial discretion to do nothing which BBO General Counsel Michael Fredrickson gave to Warren — a de facto law professor exception to the licensing rules.

But there is no law professor exception to the licensing rules, something Fredrickson has admitted.  The licensing rules apply to Elizabeth Warren practicing out of her Harvard Law School office just as much as they apply to anyone else.

Judge Young flagged the issue a decade ago of law professors providing legal services from their Massachusetts offices without being licensed in Massachusetts, and suggested that it “should be of some moment to the Board of Bar Overseers.”

Apparently it is not, and we need to find out why.


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For those that do not know Judge Young, he is a heavy weight federal judge in Boston. He is very smart and calls things as he sees them — no favorites. He knows the law.

Professor, If you’re invited to any more radio shows in Boston, why not suggest the host also contact Judge Young and see if he will discuss any follow-up to this older case? (Would the judge possibly offer qualified comment on the Warren matter? That’s probably too good to hope for.)

This post strikes non-lawyer me as potentially double-edged wrt Warren. Does the BBO’s apparent inaction against Daynard create a (weak) de facto precedent for a licensing exemption for MA law professors?

    gs in reply to gs. | October 11, 2012 at 10:29 am

    I haven’t examined Warren in the depth that our host has. That said, it seems to me that her disclosed corporate practice, the incomplete disclosure of her client list, and the absence of disclosed pro bono work are more fertile areas for investigation than the licensing issue is.

    (Btw, I wouldn’t be entirely surprised if Warren indeed has performed pro bono work—for clients who would be unpalatable even to Massachusetts voters.)

    drdog09 in reply to gs. | October 11, 2012 at 10:51 am

    gs, goes far beyond that. The occupational prestige of the legal profession is falling. This posting just confirms what I have observed of lawyers for years. No they are not all crooks only a small fraction are. But those that are not, stand idle permitting those that are the crooks to continue to practice their `craft`. That Prof. Jacobson has taken up the sword in this matter is stellar.

    Having read through this series from Prof. Jacobson the only thing that really surprises me is the low bar that is in play by what is one of our most prestigious universities. Common sense would seem to indicate to even be considered for a position in those hallowed halls that one have a active certification from some State bar. Also to maintain that employment that the certification must remain active. That appears to not be the case.

    A barber can’t cut hair without a license but a lawyer can practice law? Unbelievable.

      drdog09, if you claim that US elites are enriching themselves by wrecking the country, you’ll get no argument from me. If you claim that they seize ever more power as they become ever more incompetent, you’ll get no argument from me.

      However, my remarks focused on the Brown-Warren race. IMHO the race is the immediate target of our host’s investigations. I agree that his findings have implications beyond that race.

        drdog09 in reply to gs. | October 11, 2012 at 11:23 am

        gs, my observation was one confined to the legal profession only. That some of the profession may dabble in wrecking the country as you opine is but the cherry on top. Of any profession that should singularly be beyond reproach it is lawyers. They are trained in the law. Therefore they should not shirk from obeying it.

        Confined to the race? Ok. But if we are a nation of laws as we profess to strive for then Warren is flawed beyond redemption. She seemingly flaunts the law as to the matter of practice. So it is likely she will act in kind in such matters in the Senate.

As that old ZZ Top number says, “I’m shufflin’ through the Texas sand, but my head’s in Mississippi.*” Who are we to judge where Professor Warren’s head is at when she’s performing her legal work? Perhaps she flys her astral plane down to New Jersey whenever she takes up a client’s case.

*If he’s “thinkin’ ’bout that night in Memphis” why does he say his head’s in Mississippi?

This is significant, even if the Bar Overseers ultimately decided not to do anything about Daynard’s unauthorized practice: it absolutely destroys any hint that Professor Jacobson’s position is not legitimate and worthy of highly public discussion.

Moreover, given the ease with which Warren could have been admitted in MA when she moved to Harvard, it makes this look more and more like a sense of entitlement on her part and a view that laws are for the “little people”.

It demonstrates a level of contempt for the Commonwealth and its institutions which should give even the most diehard Democrat pause.

I wonder if the overly-paid but admittedly clueless & indiscreet Fredrickson was the so-called johnny-on-the-spot “guard dog” (watching out for the public’s interest) on this Daynard case. “You can rest easy knowing that the BBO and its employees are on the watch.” LOL!

He is still a professor at Northeastern School of Law, and still does not have an active license in Massachusetts.

Seriously professors, it isn’t like you have to take the Bar. You can get a license by motion.

Mass BBO should offer a form of amnesty to these law professors, and let them in by motion.

    drdog09 in reply to ReneeA. | October 11, 2012 at 11:34 am

    ReneeA, wouldn’t the opposite course of action be more appropriate? They are a lawyer, they know how to research the law. They discover that they may acquire Bar certification by Motion yet to not avail themselves of it. (Or they are just too lazy to do the research.) So now you are going to have to do it the hard way and earn it.

      ReneeA in reply to drdog09. | October 11, 2012 at 11:43 am

      Pay any back costs if they were giving out legal advice and be required to take specified MCLEs, that would be enough for me.

      I would spare them the embarrassment if by chance, one or two did not pass the Bar.

        drdog09 in reply to ReneeA. | October 11, 2012 at 3:52 pm

        I wouldn’t. The quintessential argument presented to the public as to why legal professionals are required to pass the Bar is to protect the public from quacks. From a layman’s perspective it is the only rationale for doing so. To provide a `pass` on the expedient of saving face is inconsistent with the justification.

Yesterday morning on WRKO, Tood & Michele stated that there would be a lawsuit filed against Warren on this issue, yesterday! I’m having trouble finding any evidence that this actually happened? Anybody hear anything on that?

    ReneeA in reply to philips66. | October 11, 2012 at 11:25 am

    Where? By Who? And on what grounds?

      philips66 in reply to ReneeA. | October 11, 2012 at 11:36 am

      Yesterday I was listening in the 8am hour. They claimed that a “former prosecutor” would announce a lawsuit against Warren for practicing law in Mass without a license. I’m extremly dissapointed that they reported this as fact, and apparently it never happened. Somebody needs to step up to the plate and do this!!!!

I’ve posted comments about this issue before when Elizabeth Warren’s law license debacle was first exposed by Professor Jacobson. Although every state bar undoubtedly perpetuates administrative/bureaucratic nonsense and may sometimes function more to monopolize and insulate the practice of law, there’s something inherently pathetic about Warren’s failure to get admitted on motion with the MA Bar. And that has to do with the collection of annual fees/dues, a portion of which goes into Client Security funds to help members of the public who are wronged by unethical lawyers (fee disputes, malpractice issues, absconding with retainers, etc.). That a candidate for Senate thinks she can just hang a law professor shingle and not contribute to a lawyers’ fund that benefits people who can’t afford to pay $650/hour for Professor Warren’s expertise is what sickens me. Her failure to follow these rules for the “little people” combined with her claim that she wants to help the “little people” from getting hammered is quintessential Harvard Hypocrisy. (Sorry Professor). And the fact that her own campaign hasn’t disclosed a single Pro Bono matter she handled in over 30 years of practice is shameful and telling.

Professor, you continue to “lead the charge” by means of your ever-deepening investigation, historical research, and fierce analytical skills.

“Questions” and “inconsistencies” have become DAMNING FACTS, OUTRAGEOUS COVER-UPS, AND EVER-GROWING DECEITS.

We have crossed a “tipping point” where lies have turned to private fraud, private fraud has turned to public scandal, and public scandal has become A PUBLIC CRISIS.

Warren needs to quit the race.

I’m wondering if Prof. Jacobson can provide a little more discussion of why this opinion would govern the issue as to Prof. Warren.

The defense asserted by Prof. Warren begins with the claim that she appeared in courts of law where she was duly admitted to practice pro hac vice or by full admission into the particular federal bar (e.g., SCOTUS). (I realize that there are still some questions to be explored about whether her various federal court admissions were properly handled or not.) Nothing like that appears in this opinion.

The defense of Prof. Warren then argues that when a lawyer is properly admitted to a federal bar, the lawyer may sit in his or her office anywhere and work on matters that are before that court. For example, if I am a member of the SCOTUS bar, I can work on a brief for a SCOTUS matter anywhere in the world (including Massachusetts!) and no state bar can bar me from doing that. There are more than a few federal cases saying so. This issue isn’t raised or addressed in the opinion.

So I’m not sure why the case about Prof. Daynard would resolve the issue as to Prof. Warren. The Daynard case doesn’t deal with the issue being asserted against Warren.

I do like the Judge’s suggestion that the BBO issue an ethics opinion on this topic. But that practical suggestion is not a holding of law that governs the Warren matter. If the BBO does wade into the issue, my sense is that they will accept the reality that lawyers admitted to federal bars (e.g., courts or agencies) can sit in Massachusetts and work on matters before that federal tribunal without obtaining a state license. The US Supremes have already said so in the context of patent practice and several lower federal courts have said so in other contexts.

    William A. Jacobson in reply to JohnSteele. | October 11, 2012 at 1:39 pm

    To readers, John Steele has been one of the few people who has approached his disagreement with me in a reasonable and professional manner, unlike many of the name callers. Check out his post

    I’ve been meaning to write up a post about why I do not accept his analysis, and I will definitely do it, but for now the problem I have is that there is no bifurcated state Bar, one for those who practice in federal court and on federal issues, and another for those who focus on state court or state issues. A lawyer needs to comply with the requirements of the courts in which the lawyers practices, and the location in which the lawyer maintains a law practice. The MA licensing requirements do not prohibit Warren from appearing in the Supreme court if she meets the Supreme Court’s requirements, but admission to the Supreme Court is not a license to practice law and maintain an office for the practice of law in any given state.

    One of the cases linked in Steele’s post, which I had seen before that, takes a position consistent with mine,

    As to the question, Judge Young’s opinion focused on where the practice of law took place, and supports my argument that since she rendered services from her office in MA, that is where the practice of law took place even if the courts were in other states. I did not claim that Judge Young resolved the license issue, since that was not before him, but he viewed it as serious, as do I.

    As another commenter noted, that Judge Young spotted the same issue I did at least addresses those who have defended Warren by acting as if this was not a serious issue or that it was purely political.

      The Federal bar angle does not help Warren. Take the Schlichtmann appeal in the First Circuit. All of the conduct in that case — by parties, lawyers, courts – took place in MA. Warren submitted a brief to the First Circuit Court of Appeals. No question that she practiced law.

      So in what way was EW authorized to practice law?

      Warren is not admitted as a member of the First Circuit so that provides no justification.

      Thus this statement by Mr Steel lacks foundation and his argument, accordingly fails: Warren then argues that when a lawyer is properly admitted to a federal bar, the lawyer may sit in his or her office anywhere and work on matters that are before that court.

      Warren is not admitted in MASS State, so that priovides no jsutification.

      She may have been admitted in NJ, but the legal work had no physical, mental or toerh connection to NJ, so that is not a jsutification.

      So where are we: WARREN ENGAGED the unauthorized practice of law.

Here is another point. People keep saying that this is a petty issue because all EW had to do was fill out some papers and get admitted.

I beg to differ.

I believe she lacked the qualification to “waive in on motion” to MA. Here is the current rule 6.1.1 (I am assuming it is the same going back to 1995)

[PART 1] The applicant shall have been admitted in another state, district or territory of the United States for at least five years prior to applying for admission in the Commonwealth,


[Part 2] shall have engaged in the active practice or teaching of law in a state, district or territory of the United States for five out of the past seven years immediately preceding the filing of the petition for admission on motion.

Warren was admitted in NJ for 5 years prior to 1995 or 1996(i presume) so Part 1 is met

But Part 2?

Warren was a professor in PA from 1987 to 1992, then 92-95 visting in Harvard (MA) and in 1995 full time at Harvard

So if she applied in 1996, she would have to show that in the immediate preceding 7 years (1989-1996) she practiced law in another state or was a law professor in another state for 5 of 7 years.

She was a professor at Penn (PA) so i doubt she can show 5 years of active work in NJ. So she would need to hand her applicatin on the law professor rule. But she does not qualify.

At best she could show she was a professor in PA in 1989, 1990, 1991 and 1992 — 4 years max! No good. If she waiting unti 1997, she can only show 3 years. etc. Maybe if she applied in 1995 or earlier, depending in start/stop dats, she could have establsihed 5 years of being a law prof.

So once 1996 hit, she could no longer waive into MA and would have had to take the bar exam — which is probably something she did not want to do.

    William A. Jacobson in reply to george. | October 11, 2012 at 3:13 pm

    The rules currently provide that for the purpose of the years of practice requirement to be admitted on motion, years spent as a law professor count.

      Prof, I believe you are missing my point.

      As I quote: “shall have engaged in the teaching of law in a state for five out of the past seven years immediately preceding the filing”

      She must show that in 5 of the 7 immediately preceding years before she applied she either “actively practiced law” or “taught law” in “a state.”

      That state cannot be MA

      Sure one could argue it could be MASS but it would make no sense.

      The words of the rule “a state” apply to “active practice” and “teaching of law”. Thus, “a state” means the same for both “active practice” and “teaching of law” .

      It would be absurd to say that you can be admitted in MA based on 5 years of active practice of law in MA. That makes no sense. So if “a state” means ‘another state’ for purpose of showing “active practice,” it must mean another state for showing “teaching of law”

      So if the statute is read to say the applicant must show 5 years of “active practice” of law or “teaching of law” IN ANOTHER state, she cannot qualify and could not waive in

      In other words, if she can’t count her Harvard teaching time, she can’t waive in.

      Do you disagree?


      The applicant shall have been admitted in another state, district or territory of the United States for at least five years prior to applying for admission in the Commonwealth,


      [Part 2] shall have engaged in the active practice or teaching of law in a state, district or territory of the United States for five out of the past seven years immediately preceding the filing of the petition for admission on motion.

        george in reply to george. | October 11, 2012 at 4:03 pm

        current Mass SUpreme Rules make clear that “a state” does not mean MA.

        Here is a rule on required letter of recommendation for lawyers who seek to waive in by motion (section 6.1 motions):

        1.2.5 For admission on motion pursuant to Section 6.1, three (3) letters of Recommendation for Admission from members of the bar of the Commonwealth or of the bar of the state, district or territory of the United States where the applicant is admitted or last practiced. At least one letter must be from a member of the bar of the state, district or territory of the United States where the applicant is admitted;

What law governs the attorney/client relationshp?

Does all the work product must be done instate? No, but where was the initial contact and continued communication between the two? It was like Warren was just hanging outside the Supreme Court with a legal brief ready out of no where. They contacted her in Massachusetts, because that is where she worked and lived.

Can a Massachusetts lawyer do work on vacation, while in the White Mountains of New Hampshire?

What if the case is about a Massachusetts property, but the client is in New Hampshire so the lawyer swings by to the home for a meeting and saves the client a trip down 93?